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Hall v. Mississippi Department of Public Safety4/9/1998
Johnson v. Foster , 202 So. 2d 520, 524 (Miss. 1967)).
Indeed, where the plaintiff raises the inference and the defendant puts on no proof, the jury still may reject the inference and return a verdict for the defendant. Thus, evidence of the elements of res ipsa is more properly described as permitting an inference of negligence, rather than raising a presumption of negligence.
Read, 515 So. 2d at 920 (citations omitted).
The trial Judge specifically held that the immunity provisions of Miss. Code Ann. § 11-46-9(1)(c) applied in the facts of this case and as such MDPS was not liable for Hall's injuries. The trial court further found that " o act or omission on the part of the State's employee caused the patrol car to roll forward." The trial court's Order also specifies that "Mr. Hall further asserts that this accident did not result from 'any act or omission of an employee.'" Even though the trial court did not specifically address negligent maintenance of the patrol vehicle, it can be inferred from these statements that the trial Judge, acting as the finder of fact in a bench trial, did not find evidence of negligence on the state's behalf. Additionally, a review of the record reveals that Hall presented no evidence which would establish that MDPS provided improper care and maintenance of the vehicle. Instead, Hall was relying on the finder of fact believing that the second element of the res ipsa loquitur doctrine was established, i.e., that the occurrence is such that it would not have happened in the ordinary course of things if those in control of the vehicle had used proper care. The trial Judge, as finder of fact, could have inferred negligence on the State's part. However, even if the trial judge had inferred that the state was negligent, this inference could still be rebutted by the state with credible evidence.
Testimony regarding care and maintenance of the patrol vehicle was elicited from Officer Cox and Ronnie McKenna, the owner of the automotive company that serviced the vehicles owned and used by the MDPS. After hearing all of the evidence presented, the trial Judge concluded that " o act or omission on the part of the State's employee caused the patrol car to roll forward..." Since the trial Judge was not required to infer negligence based on the res ipsa loquitur doctrine, and there was substantial evidence in the record that supported his finding that there was no negligence on the state's part, this Court will not overturn this decision on appeal.
IV. WHETHER MDPS WAIVED ITS IMMUNITY BY OBTAINING LIABILITY INSURANCE.
Hall alleges that " he mandate of [Miss. Code Ann.] § 11-46-16 makes it clear that, by the purchase of liability insurance by the public entity, the 'sovereign', it has waived its immunity to the extent of the upper limits of the policy." The statute states in pertinent part:
(1) Any governmental entity, in the discretion of its governing authorities, may purchase and maintain liability insurance to cover wrongful or tortious acts or omissions of such governmental entity or its employees....
(2) If any governmental entity has in effect liability insurance to cover wrongful or tortious acts or omissions of such governmental entity or its employees, such governmental entity may be sued by anyone affected to the extent of such insurance carried; however,... , immunity from suit is only waived to the extent of such liability insurance carried and a judgment creditor sahll have recourse only to the proceeds or right to proceeds of such liability insurance. ...
Miss. Code Ann. § 11-46-16 (Supp. 1997)(4).
This Court addressed the applicability of liability
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